A firefighter from Gary, Indiana was convicted in April of promoting and running a pitbull-fighting operation, but was the conviction based upon admissible evidence? According to defense counsel it was not, and he has sought permission to contact jurors to prove his case.

Back in April, Carlton Davis, Jr. was convicted after trial of 22 counts related to dog-fighting and animal cruelty in connection with a pitbull-fighting operation that he allegedly promoted and ran. At trial, the prosecution had several lay and expert witnesses describe the operation and introduced nearly 200 exhibits. Defense counsel's bone of contention, however, is a photograph that somehow found its way to the jury room despite the fact that the prosecution did not mark or have it admitted at trial.

Unfortunately, there is a gag order on the case, so I don't know the details about the photo, but defense counsel somehow learned about it and wants to interview jurors and ultimately have them testify about it and thus impeach their verdict. His position is supported by Indiana Rule of Evidence 606(b), which states in relevant part that:

"[u]pon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith, except that a juror may testify (1) to drug or alcohol use by any juror, (2) on the question of whether extraneous prejudicial information was improperly brought to the jury's attention or (3) whether any outside influence was improperly brought to bear upon any juror."

Obviously, an inadmissible photograph would constitute "extraneous prejudicial information," allowing for juror impeachment under Indiana Rule of Evidence 606(b). But will such impeachment be enough to disturb the jury's verdict? Not according to deputy prosecutor Mark Watson. In response to defense counsel's motion, Watson has claimed that the photograph "merely provided the jury with a tangible visual of what was already described during trial testimony by the defendant's own expert witnesses."

Again, because of the gag order, I don't know about the accuracy of this statement, but I do know that Watson is correct when he states that "[e]ven if jurors did see or consider the photograph, it's up to the judge to determine what, if any, prejudicial impact that evidence would have had on a verdict by evaluating it in the overall context of the trial." As I noted in a post last week:

"[Rule 606(b) strictly prevents a juror from testifying about 'the effect of anything on any juror's mind or emotions or mental processes.' In other words, even if jurors could testify about the bailiff's comments because they constituted an improper outside influence on the jury, those jurors could not testify about the effect of those comments; that analysis is left for the court. See, e.g., Pyles v. Johnson, 136 F.3d 986, 992 (5th Cir. 1998)....What the Court of Appeals should have done was make an objective assessment of what effect the bailiff's comments would have had on the average juror and determine whether Medistar likely suffered "substantial prejudice" as a result of the jury's exposure to the extraneous information."

The same goes here. Jurors can testify that they saw the photograph at issue, but they cannot testify about the effect that the photograph had on their deliberations. Instead, the judge must look at the photograph in the context of the entire case and determine its likely effect.